Attorney Aizman is a Former DUI prosecutor that trained police officers on how to testify in DUI hearing & trials.
A conviction of a second DUI when the prior DUI conviction or “wet reckless” offense was within the past 10 years increases the penalties under California vehicle code section 23540. This means longer jail time and more expensive fines, in addition to a longer DUI program and SR-22 filing requirement.
Certain mandatory penalties exist for a 2nd time DUI. Those include:
- Possible jail time is increased to a minimum of 96 hours in the county jail but no more than one year.
- The fine is between $390 and $1,000 and will likely be higher than the fine from the first offense. The court will also add penalty assessments to the fine which will increase the total amount substantially.
- Jail time or community labor can be completed in lieu of the fine.
The court will also require that you attend a mandatory DUI program that can range from 18 to 30 months. Only upon proof of completion of the course will you be permitted to receive your driving privileges back. As you can see, the penalties for a second DUI offense within a 10-year period can severely impact your daily life and the lives of those around you.2
Other than the driving under the influence program that you will have to complete, the judge may also impose collateral sentences that may require you to attend AA programs, Mothers Against Drunk Driving (MADD) programs, or other programs that impart the seriousness of a DUI.
In most counties it is still discretionary for the judge to require you to install an Ignition Interlock Device after the first DUI charge. However, after a second DUI or wet reckless offense within 10 years, the judge may require that you to have an Ignition Interlock Device on any car that you may drive after the period of suspension of your license has ended as a condition of your probation.3
Depending on the circumstances of your case we can employ a number of potential defenses in a second time DUI to potentially reduce charges or get a case dismissed:
Probable Cause In A DUI Stop- In order to arrest someone for a DUI an officer has to have a resonable belief that a crime is being committed. If the officer cannot establish to the court, probable cause for the arrest than we may be able to suppress any evidence through a suppresion hearing.
Misconduct at a sobriety checkpoint – If the officer administering the field sobriety tests at a dui checkpoint did not follow the correct procedures the evidence can be challenged. For example many officers do not take into account medical conditions, structure of pavement etc when administering the field sobriety tests.
Rising Blood Alcohol Defense – If someone was pulled over for a DUI and their body was still in the process of absorbing alcohol than the BAC reading on a breathalyzer test can be inaccurate.
1) What Is A “Wet Reckless” Offense?
A “wet reckless” is another name for California Vehicle Code section 23103 charge of reckless driving involving alcohol. If you have a good defense or the prosecution believes there is some weakness to the DUI charge, such as an exact 0.08% chemical test, the prosecution may offer a plea bargain for a wet reckless. However, note that a wet reckless is still a prior offense on your record and if you are convicted of another DUI within 10 years of the wet reckless, the DUI will be considered your second DUI and the penalties will be applied accordingly.4
2) What Are Considered “Aggravating Factors” In My DUI Case?
An aggravating factor is an additional charge that can affect the penalties of your DUI and the following is a non-exhaustive list.
- Driving on a suspended license (Vehicle Code 14601)
- Auto accident
- Hit and run (Vehicle Code 20001)
- Minor or child in the car (Vehicle Code 23572 VC)
- Chemical test refusal
- Speeding Enhancmeent (Vehicle Code 23582)
- Alcohol content of .15 or higher
3) What Happens If I Was Still On Probation From My First DUI At The Time Of My Arrest For My Second DUI?
It is likely that your probation will be revoked and the penalties associated with your second DUI will be much harsher than if you were no longer on probation. Furthermore, the DMV will suspend your license for a period of 1 year before you are eligible for a restricted license. The suspension will be a total length of 2 years.
4) How Does My Refusal Of A Chemical Test For Both DUI Arrests Affect The Penalties?
In California, if you are suspected of driving under the influence, you are deemed to consent to a chemical breath test. If you refuse one or both times when arrested, the punishments will be much harsher. Additionally, if you refuse a Breathalyzer test you will not qualify for the limited privilege of a restricted license.
5) Is It Likely That The Judge Will Allow A Community Service Or Work Sentence To Replace The Mandatory Jail Time?
The Judge does not have the discretion to delete the jail time in a 2nd offense DUI. It is set by the legislature by statute. The Judge can, however, allow you to complete your jail sentence in a private (City) jail or may allow you to complete your sentence in a lockdown residential rehabilitation/treatment facility for substance abuse.
Former Prosecutors Trusted BY CNN, Fox News & CBS For Criminal Defene Analysis
Resolute Defense In Your DMV Hearing: Including
- Review of the police report for any shortcomings in the investigation.
- Subpoenaing the records of maintenance and accuracy logs on the specific PAS and/or ECIR machine used to conduct your exam.
- Strategizing any viable defenses to preserve your license, etc.
Zealous Defense In Your Criminal Proceedings: Including
- Extensive review of the police report for possible defenses.
- Subpoeaning the video footage (“dash cameras”) of the traffic stop, if any taken.
- Have any blood drawn retested by an independent facility.
- File any important Pretrial motions (i.e., Motion to Suppress the evidence against you, Pitchess Motion for officer misconduct at arrest, etc.)
- Plea Negotiations with prosecutors to garner a charge reduction.
- Dismissal of the case, if applicable for insufficient evidence.
Dynamic Defense In Your Trial Proceeding: Including
- File pre-trial motions to seek to exlude any non-relevant evidence that prosecutors may try to use in trial.
- Utilize reasearch on demographic set for jury selection
- Cross examine all witnesses including law enforement & governement expert
- Present expert testimony
The defense attorneys at the Aizman Law Firm know how to navigate the laws to get you the best result possible. Because we are former Los Angeles prosecutors, we have the knowledge, experience and relationships with Judges and prosecutors necessary to obtain the best outcomes for people charged with a DUI. If you would like to confidentially discuss your case or you have some questions, contact us for a free consultation at 818-351-9555